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L E T T E R 



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GEO. W. PASCHAL 



THE PRESIDENT, 



ASKING FOR THE 



PARDOiN OF LODOVIC P. ALFORD AND OTHER ClTIZEiNS, 



IMPRISON KD Uy 



MILITARY COMMISSIONS UNDER THE RECONSTRUCTION UWS. 



T 1 c: A 



WASHINGTON CITY: 

h'oill a witherow, printers ahd stereotypers. 
1870. 




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Washington, 1). C, Jalij 4, 1870. 
To his Excellency, TJ. S. Grant, President of the United States. 

Mr. President: On this day, so sacred to liberty, I respect- 
fully ask you to commemorate its infinite blessings by order- 
ing the release of Lodovic P. Alford, who is lingering out a 
miserable existence in the penitentiary of Texas. And in 
asking this exercise of executive clemency, I may as well 
frankly admit that the reasons -wliich I shall present will be 
alike applicable to all others who arc enduring incarceration 
under like circumstances. 

I wish you to understand that this plea is not made by a 
lawyer merely for his client. ]\Iy duty to my country rises 
far above that sacred relation. The prayer is made b}^ a citi- 
zen who has endured much suffering under military rule; a 
man Avho has always made the constitution his polar star; 
and an author who has contributed his mite towards the pre- 
servation and restoration of constitutional liberty, and the 
exposition of its great charter; and who cannot rest quietly 
while the humblest citizen is enduring imprisonment which 
the constitution forbids. 

This da\' commemorates the ninety-fourth year of Ameri- 
can independence, and it naturally invites us to a retrospect 
of the time, the occasion, and the reasons which inspired our 
fathers to proclaim the immortal heritage to man. But, for 
one, I confess my inability to take that retrospect wiih satis- 
faction, •while there lingers in a loathsome dungeon a single 
American citizen, with no constitutional warrant for his im- 
prisonment. 

I find in that declaration these significant passages, then 
applicable to the tyrant from whom our fathers severed their 
allegiance: 

"lie has made judges dependent on his will alone, for the 
tenure of their offices, and the amount and payment of their 
salaries. 

"lie has erected a multitude of new offices, and sent hither 



/' 



swarms of officers to harrass our people and eat out their 
substance. 

" He lias kept among us, in times of peace, standing armies, 
without the consent of our legislature. 

" He has affected to render the milUary independent of and su- 
2')erior to the civil poioer. 

"He has combined, with others, to subject us to a juris- 
diction foreign to our constitution, and unacknowledged by 
our laws; giving his assent to their acts of pretended legis- 
lation : 

" For quartering large bodies of armed troops among us : 

"For protecting them by a mock trial, from punishment, 
for any murders which they should commit upon the inhab- 
itants of these States : 

* * * "For imposing taxes on us without our consent: 

" For depriving us, in many cases, of the oenefits of trial by 
jury: 

"For suspending our legislatures, and declaring them- 
selves invested "with powers to legislate for us in all cases 
whatsoever." 

"Who, on this holy day, can read these extracts, and remem- 
ber the history of the last few years, without fear and tremb- 
ling? "What single specification in all the charges is not 
applicable, in all its force, to the people often States? It is 
no answer that they may have deserved this cruel and un- 
usual punishment. The responsibility is always upon the 
governors, not the governed. A Cfesar might weep, and say, 
" They would have it so !" but the responsibility was none the 
less upon Csesar. The ministers of George HI could find 
excuses for all their acts of oppression in the obduracy of the 
colonists. But they learned not the lesson, that men who 
understand their rights regard the employment of ujpconsti- 
tutional means, to obtain desired ends, as worse than the evil 
intended to be eradicated, or the irregularities intended to 
be punished. No people ever hold themselves responsible 
for their oppressions; nor is it right that they should. 

Thus understanding the philosophy of government, I feel 
that I can with the more freedom invite your excellency's 
calm attention to this fearful indictment against a ruthless 
monarch by a portion of his dutiful subjects. They are, in- 
deed, frightful charges; but they fall far short of the griev- 



ances of my native and adopted States for now nearly ten 
years. I assure you that, under every regime, oppression 
has only diftered in form and degree. During all that time 
vigilance committees, committees of safety, martial law, mil- 
itary commissions, conscriptions, impressments, taxes levied 
and collected by military power, suspension of civil law 
and of the inestimable writ of habeas corpus, trials, incarcera- 
tions, and executions by self-constituted regulators, by judges 
dependent upon the caprice of military commanders or 
unconstitutionally constituted military commissions and 
provost marshals, have destroyed liberty and almost smoth- 
ered out its spirit in those States. In 1862 Jefferson Davis 
and his military authorities, who controlled the rebellion, 
placed under martial law the people of eleven States over 
which they had control; and they subjected many good citi- 
zens to trial by military commissions and provost marshals. 

In my own person then, and in 1864, I resisted this ai'bi • 
trary exercise of power, and appealed to the constitutions, 
to history, and the principles of 3Iagna Charta and the bills 
and petitions of right forced from the tyrannical kings of 
England. I was joined by others, by men who placed the 
preservation of liberty, with the loss of their cause, above 
the slavery of their own race, even with success and a dis- 
rupted Union. While we were not able to save many citi- 
zens from military oppression, and not a few from the loss 
of their lives, 3^et we forced the Congress of Richmond to de- 
clare martial law abolished; and we awakened the people to 
the real character of the cause for which they were pouring 
out their blood and treasure. This arbitrary exercise of 
military power, this utter disregard of constitutional liberty, 
was the first serious blow to the Confederate cause. 

I know that it is not necessary that I should mention this 
history to remind your excellency that no man in all the 
Southern States will have the temerity to attribute any plea 
which I make in behalf of my fellow-citizens, into giving 
any indorsement to the rebellion, or of having any sympa- 
thy with the plans and purposes of the rebels. Nor will any 
one claim me as an apologist for murderers. No man in all 



the nation was more shocked than myself at the miirder 
of George W. Smith, and the worthy colored men who 
were slain with him, l)y an infuriated mob. There are no 
greater blots upon the escutcheon of our country than these 
vigilance committees and irresponsible mobs, save and ex- 
cept those military star-chamber organizations, which as- 
sume to try citizens for crime in the face of the constitution. 
Vigilants and mobocrats are answerable to their returning 
consciences and to civil law. The crimes of unconstitu- 
tional tribunals are the sins of the nation and its rulers. 

jSTow had it been proved before a constitutional civil tri- 
bunal, to the satisfaction of a jury of his peers, that Alford 
was present, aiding and abetting the perpetrators of this 
monstrous crime at Jofterson, I should be the last to pray 
that the extreme penalty of the law should not be inHicted 
upon him. 

But, Mr. President, Alford was tried in star-chamber by 
a secret military commission appointed by General Reynolds, 
who then, directly and indirectly, exercised all executive, 
legislative, and judicial power over one million citizens of 
Texas. Alford was found guilty of murder in the first de- 
gree; he was sentenced to imprisonment for life in the Texas 
penitentiary, and he is to-day suffering under that sentence, 
and under color of no other authority. There is no law 
in Texas for a lifetime imprisonment. Our penalty for mur- 
der in the first degree is death ; in the second degree it is 
imprisoinnent for a term of years. (Paschal's Digest, Article 
2271.) Had the commission found in favor of the death pen- 
alty, it would have been the duty of your excellency to ex- 
amine the facts, in accordance with the practice in military 
trials, and, if not satisfied upon the evidence or the law, as 
I am sure you would not have been, you would have set the 
sentence aside. But the approval of the commanding gen- 
eral made complete the sentence, wholly unsustained by the 
law and evidence. And, although I am told that the record 
has been transmitted to the office of the Judge Advocate 
General, yet access to it has been denied to the counsel of 
Mr. Alford. The conviction, therefore, of Lodovic P. Alford 



stmids upon the sentence of a military commission, appointed 
by Brevet Major General Reynolds, commander of the fifth 
military district, which sentence was approved by the same 
general. This is a stab at the constitution and the govern- 
ment which is more fatal to liberty than the crime which it 
sought to punish. 

I need not tell you that Alford is a citizen of the United 
States; that he never was in alibis life in any way connected 
with the army or navy, or Avith the militia when in actual 
service. Xcvcrtheless he, a free citizen, has been tried by a 
secret military tribunal, composed of military ollicers, in ac- 
cordance with military forms, and sentenced to punishment 
for life! 

In all the black catalogue against George III, our fathers 
urged no such crime as this against the constitution and the 
law. In the reign of Charles I, citizens were imprisoned by 
military power, and judges were appointed who held that it 
was a sufficient return to a habeus corpus that the prisoners were 
held by military order. But that decision could not stand. 
The unfortunate prince was forced to yield the petition of 
right, and to release the prisoner before he lost his head for 
the violation of English liberty. And his levy of ship money 
to support his wars was not a crime half so black as his im- 
prisonment of citizens by military power alone, his denial 
of the writ of habeiis corpus , and his appointment as judges of 
creatures to do his will rather than to administer the funda- 
mental laws made to protect the subjects in the enjoyment of 
their lives, liberty, and property. 

To Congress is given the limited power to constitute tri- 
bunals inferior to the supreme court, and to define and pun- 
ish piracies and felonies committed on the high seas, and 
otfcnses against the law of nations. But, by the same instru- 
ment, '■^ih.Q judicial power shall extend to all cases, in law and 
e(piity, arising under the Constitution, the laws of the United 
States, and treaties made, or which shall be made under their 
authority." And by a clause in the same section it is writ- 
ten : 

'• The trial of all crimes, except in cases of impeachment, 



6 

shall be by jury; and such trial sball be beld in the State 
where the said crimes shall have been committed; but when 
not committed within any State, the trial shall be at such 
place or places as the Congress may by law have directed" 

A "case in law" may arise as well upon a crime as upon 
a civil matter. A "trial" is an examination before a com- 
l^etent tribunal^ according to the laws of the land, upon the facts 
put in issue, upon indictment or presentment, for the purpose of 
determining the truth of such issues. The framers of the 
Constitution, and all judges and commentators who have 
passed upon this article, have defined this '■'trial" to mean, 
per pais, or by the country; that is, hy a jury, who are called 
the peers of the party accused, being of the like condition and 
equality in the State. And by "a jury" was then under- 
stood, as it was understood in Magna Charta, to mean, ex vi 
termini, a trial by a jury of twelve men, who must unanimously 
concur in the guilt of the accused before a conviction can be 
had. 

This was the universal understanding at the time of the 
adoption of the Constitution. But so great was the jealousy 
of the people, that they would leave nothing to inference or 
the definitions of their ancient law. Hence, in 1789, cer- 
tain amendments were proposed and adopted, which declared 
that " no soldier shall, in time of peace, be quartered in any 
house without the consent of the owner; nor in time of war 
but in a manner prescribed by law ;" that the people should 
be secure in their persons, houses, papers, and efl;ects, against 
unreasonable searches and seizures; and that no warrant 
should issue but upon probable cause supported by oath or 
aflirmation. And to leave no doubt that a ^' trial" meant a 
proceeding in a civil court, in accordance with the rules of 
the common law, by whicli a presentment or indictment was 
an indispensable prerequisite, it is by the Yth amendment 
declared that " no j^erson shall be held to answer for a cajntal 
' or otherwise infamous crime, unless on a presentment or indict- 
^ 7nent of a grand jury, exce^it in cases arising m the land or 
* naval forces, or in the militia when in actual service, in time 



^ of war or 2>ubUc dan(/er ; * * * * nor be deprived of ?//"<?, 
' liberty, or j^ropcrty^ without due process of law. ^^ 

That murder is a crime no one will deny. It is a capital 
and infamous crime. It is a felony of the highest degree. 
'■'■ Prcscniment,^' '-'■ indictment " and ^^ f/rand jury," are terms of 
equally certain signification. 

A ^Military Commission could in no sense fill the descrip- 
tion of the one or the other. And it is impossible to bring Mr. 
Alford within the exception ; for the oftense was not a case 
^^ arising in the land or naval forces, or in the militia 7Dken in 
actual service, in time of war or public danger." The case 
was an offense against the laws of Texas. The accused were 
citizens of Texas, in no manner connected with the army or 
navy. Therefore, they could not be put upon trial in the 
absence of a presentment or indictment found by a grand 
jury of a court duly constituted under the Constitution and 
laws of the land. 

And the amendments stop not here. The YIth declares 
that "in all criminal prosecutions, the accused shall enjoy the 
' right to a speedy and public trial by an impartial j«r^ of the 
' State and district wherein the crime sliall have been committed, 
' which district shall have been previously ascertained by law, 
' and to be informed of the nature and cause of the accusa- 
Hion; to be confronted \vith the witnesses against him; to 
* have compulsory 2>?'oa'5S for obtaining witnesses in his favor; 
' and to have the assistance oi coun.sd for his defense." 

Tliis constitution is a law for rulers as well as people, 
equally in war and in peace, and covers with the shield of 
its protection all classes of men, at all times and under all cir- 
cumstances. [Ex parte Milligan, 4 Wallace, 120, 121.) 

I call your attention to the language of this opinion. It 
clearly holds these propositions: The Vth amendment re- 
cognized the necessity of an indictment, or presentment, 
before any one can be held to answer for high crimes^ with 
the exceptions therein stated; by which it was meant to 
limit the trial by jury, in this Vlth amendment, to those 
persons who were subject to indictment or presentment in 
the Vth: Those connected with the militarv or naval ser- 



8 

vice are amenable to the jurisdiction which Congress has 
created for their government, and while thus serving they 
surrender the right to be tried by the civil courts: All 
other j>e?*5ons are guaranteed trial hy jury. Civil liberty and 
martial law cannot endure together ; tlie antagonism is irrecon- 
cilable: jSTeither Congress nor the President can disturb 
one of these guaranties of liberty, except the one concern- 
ing the writ of habeas corpus. 

I will not weary your excellency with a number of author- 
ities. I stand ready with these, should you submit the ques- 
tion to the law officers of the Government. 

The Constitution is the supreme law of the land. It re- 
quires of you, in common with all other officers, an oath to 
support it, and, above all other officers, to defend it. And 
you have the high authority of Mr. Jefferson for saying, that 
when an application is presented to 3'ou for pardon, your 
first duty is to look to the Constitution, and to determine 
for yourself whether the law under which the party has been 
tried and convicted is warranted by the Constitution; and 
if, in your opinion, it be not warranted, it is your dut}' to 
pardon, irrespective of any question about the guilt or inno- 
cence of the party. That great man, in that same letter, (to 
Mrs. Adams,) assumed that members of Congress and the 
President, in the first instance, must determine for them- 
selves upon the constitutionality of laws passed and approved 
by them; and so must the courts, when they try and con- 
vict. But that, on an application for pardon, the President 
must be governed by his own conscientious opinions in re- 
gard to the sacred instrument. (4 Jeflerson's Works, pp. 
556, 560, 561.) 

In one of those letters Mr. Jefferson said, "I discharged 
' every person under punishment or prosecution under the 
' sedition law, because I considered and now consider that 
Maw to be a nullity, as absolute and as palpable as if Con- 
' gress had ordered us to fall down and worship a golden 
' image; and that it was as much my duty to arrest its exe- 
' cution in every stage, as it would have been to have rescued 
< from the fiery furnace those who should have been cast into 



9 

' it for refusing to worship the image." (IV Jefferson's works, 
p. ooG.) 

And in answer to the argument that it belongs to the judges 
to determine the constitutionalit}- of a law, he says : 

"You seem to think it devolved on the judges to decide 
on the validity of the sedition law. But nothing in the Con- 
stitution has given them a right to decide for the executive, 
more than to the executive to decide for them. Both magis- 
trates are equally independent in the sphere of action as- 
signed to them. The judges, believing the law constitution- 
al, had a right to pass a sentence of fine and imprisonment, 
because the power was placed in their hands by the Consti- 
tution. But the executive, believing the law to be unconsti- 
tutional, were bound to remit the execution of it, because 
that power has been contided to them by the Constitution. 
That instrument meant that its co-ordinate branches should 
be checks on each other. But the opinion which gives to 
the judges the right to decide what laws are constitutional 
and what not, not only for themselves in their own sphere of 
action, but for the legislature and executive also, in their 
spheres, would make the judiciarj' a despotic branch." 

Jefferson, the great apostle of liberty, the immortal au- 
thor of the Declaration of In.dependence, was spared half a 
century after its promulgation. He never ceased to warn us 
of any approach towards the gulf of dissolution or the rock 
of consolidation. On the fiftieth anniversary his immortal 
spirit, with liis compatriot, the head of another school, John 
Adams, was called to their better land. They had lived to 
learn that error is never dangerous while reason is left free 
to combat it; that statesmen may differ upon non-essentials; 
that, under all theories, the government is for tlie people, 
and that it can only be preserved by a jealous watchfulness 
over every citizen, and by enlarging, rather than circumscrib- 
ing, the rights of the masses. From their graves these im- 
mortal apostles vspeak to you to-day. And they tell you that, 
as the executive of this mighty nation, the Declaration of In- 
dependence and the Constitution will perish if you permit 
one citizen to remain manacled with chains illegally forged. 

I beg to remind you, in the memorable language of 
Queen Anne, on a notable occasion: '•She could inflict 
2 



10 

' uo punishment upon any, the meanest of her subjects, 
' unless warranted by the law of the land." And that war- 
rant can only be found in the Constitution, and in the civil 
and criminal laws for citizens, and in the rules and articles 
of war for the government of soldiers and sailors. But these 
jurisdictions must be kept separate, or there is no safety 
for either. 

You must judge for yourself of the jurisdiction and pow- 
ers of the tribunals which tried these cases, but with no more 
power than I or any other citizen could confer upon them. 
This is a rule of universal application, whenever a question 
as to the jurisdiction of the court which tried the cause is 
presented. The proposition is plain and simple. If the mili- 
tary commission had no jurisdiction under the Constitution, 
its acts were nullities. Our court of the highest resort has 
several times thus enunciated the principle: 

"This proposition (as to the conclusiveness of a judgment) 
is true in relation to every tribunal acting judicially, whilst 
acting within the sphere of their jurisdiction, where no ap- 
pellate tribunal is created ; and even, when there is such an 
appellate power, the judgment is conclusive when it only 
comes collaterally into question, so long as it is unreversed. 
But directly the reverse of this is true in relation to the judg- 
ment of any court acting beyond the pale of its authority. 
The principle upon this subject is concisely and accurately 
stated by this court in the case of Elliott et al. vs. Peirsol et 
al., (1 Pet, 340,) in these words : ' Where a court has jurisdic- 
tion, it has a right to decide every question which occurs in 
the cause; and whether its decision be correct or otherwise, 
its judgment, until reversed, is regarded as binding in every 
other court. But if it act without authority, its judgments 
and orders are regarded as nullities. They are not voidable, 
but simply void.'"'' (Wilcox r5. Jackson, 13 Pet,, 510, 511.) 

This rule is as applicable to one class of officers and tribu- 
nals as another. The question of powei^ to render the judg- 
ment or to do the act is always open whenever and wherever 
the record of the judgment is offered. The general rules are 
thus stated upon the highest judicial authority in Texas: 

"The principle that a judgment of a court acting without 
authority is null seems to be of universal application. The 



11 

only difference in its effect on the judgments of general and 
of specially limited jurisdiction is, that, in support of tlie 
former jurisdiction is presumed, while in the latter it must 
be shown; but whenever the want of po^w/- is made to ap- 
pear, its legal effect is the same, whatever may be the charac- 
ter of the jurisdiction. (Cowen & Hill's Notes, vol. 4, pp. 206, 
214, and the cases cited.) The cases are numerous in which 
the effect of a want of authority is enunciated; and it is thus 
perspicuously stated in Elliot rs. Piersol, (1 Pet., 328-340.) 
'Where a court has jurisdiction, it has a right to decide every 
question which occurs in the cause; and, whether its decision 
be correct or otherwise, its judgment, until reversed, is re- 
garded as binding in every other court. But, if it act with- 
out authority, itsjudgments and orders are nullities. They 
are not voidable, "but simply void, and form no bar to a re- 
covery sought even prior to a reversal in opposition to them.' 
"The appellant contends that a judgment of the supreme 
court, having general appellate jurisdiction, is conclusive, 
unless set aside before the expiration of the term, and that 
no court can look behind it; and, in support of this position, 
refers to the case ex parte Tobias Watkins, (3 Pet., 193.) * * 
There are repeated recognitions in the opinions of that court 
of the general rule as to the legal consequence of the want 
of pow'"er, whether the jurisdiction be general or special. In 
Voorhies vs. The Bank of the United States, (10 Pet., 474,) 
it is said, in substance, that the only difference between the 
supreme court and other courts is, that no court can revise 
the proceedings of the supreme court, but that that differ- 
ence disappears after the time prescribed for a writ of error 
or appeal to revise those of an inferior court of the United 
States or of any State. They stand on the same footing in 
law. If not warranted by the constitution or law of the land, 
the most solemn proceedings of the supreme court can con- 
fer no right, which is denied to any judicial act, umler color 
of law, ic/dch can propcrb/ be deemed to hare been done coram 
von judice; that is, by persons assuming the judiciaj function 
in the given case without lawful authority. In Williamson 
ct al. vs. Berry, (8 How., 540,) it was declared, in the opinion 
of a majority' of the court, to be a 'well-settled rule in juris- 
prudence, that the jurisdiction of any court exercising au- 
thority over a subject may be inquired into in every other 
court, when the proceedings in the former are rt-lied upon 
and brought before the latter by a party claiming the benefit 
of such lu'ocecdings. The rule prevails, whether the decree 
or judgment has been given in a court of admiredti/, chancery, 



12 

ecclesiastical court, or court of common lair, or whether thepoint 
ruled has arisen under the Iravs of nations, the practice in 
chancery, or the municipal laws of States.' (3 Dall., 7; 4 
Cranch, 241; 13 Pet, 499; 3 How., 750.) The rule thus 
stated is suthciently broad to cover the judgments of all courts, 
unless, ijickecl, there be a court ichose jurisdiction is unlimited." 
(Horan vs, Wahrenberger, 9 Tex., 318, 319.) 

I submit to your excellency, for Mr. Alford, that this 
judgment of the military commission is without authority of 
law; that it is unconstitutional, null and void; and that, 
upon an application fov pardon, it is not only the right, but 
the duty of your excellency to meet these questions squarely, 
and to decide them in accordance with the dictates of your 
own judgment; and, if you believe the law to be unconstitu- 
tional, to disregard the judgment. 

Mr. President, I am aware that the power to thus try citi- 
zens of the United States is claimed under the third and 
fourth sections of "an act to provide for the more etficient 
government ol the rebel States." The sections read thus: 

" 3. It shall be the duty of each ofhccr assigned as afore- 
said, to protect all persons in their rights of person and 
property, to suppress insurrection, disorder, and violence, 
and to punish, or cause to be punished, all disturbers of the 
peace and criminals; and to this end he may allow local 
civil tribunals to take jurisdiction of and to try offenders, or, 
when in his judgment it may be necessary for the trial of 
oftenders, he shalt have power to organize military commis- 
sions or tribunals for that purpose, and all interference under 
color of State authority with the exercise of military author- 
ity under this act shall be null and void. 

"4. All persons put under military arrest by virtue of this 
act shall be tried without unnecessary delay, and no cruel or 
unusual punishment shall be inflicted, and no sentence of 
any military commission or tribunal hereby authorized, 
affecting the life or liberty of any person, shall be executed 
until it "is approved by the officer in command of the district, 
and the laws and regulations for the government of the army 
shall not be affected" by this act, except in so far as they con- 
flict with its provisions: Provided, That no sentence of death 
under the provisions of this act shall be carried into effect 
without the approval of the President."' 

This law docs not create judicial tribunals inferior to the 



13 

Supreme Court of tlie United States; it creates no judicial 
tribiuial or judicial district; it defines no crime; it creates 
no ofiense ; prescribes no penalty. It speaks of " criminals " 
and "oftendcrs," but gives no description of Avliat they are; 
against what law or peace they have offended, or by what 
statute they are to be tried. There is as much power to 
organize other "tribunals" as "military commissions." 
^N'eithcr could be effected without the exercise of legislative 
power. But the sentences of the one and the other had to 
undergo tlie supervision and approval of the commanding 
general, and, in capital cases, of the President. And this 
brings ns to the direct question, what is the military power 
of tile President of the United States? The Constitution 
answers: " The President shall be commander-in-chief of the 
' army and navy of the United States, and of the mUitia of the 
' several States when called into the actual service of the United 
' States:' 

This is the alpha and omega, the beginning and end, of 
the whole matter. The Constitution limits the power to the 
"army and navy, and to the militia when in actual service." 
The law establishes a code for the government of these, but 
a difierent code for others. And the Constitution gives the 
President no power over the citizens disconnected with the 
armv and navy, nor over the civil tribunals of the land. And, 
having no such power, the Congress could not confer it upon 
his subalterns. 

I have not overlooked the great arguments g^o^^^ng out of 
the duration of the rebellion or the necessities of the war. I 
do not deny that every incidental power may be exercised to 
preserve the powers delegated by tlie Constitution, and con- 
cede all that is necessary for the restonition of republican 
government and the rehabilitation of the States. No one has 
given to these and to all the constitutional amendments a 
more hearty support. But we are not to forget the great 
cardinal principles, that the citizen, unconnected with the 
army or navy, cannot be denied the right of trial by jury, in 
a judicial trilnmal; that through all the struggle the rebels 
never ceased to be citizens, answerable to the laws defining 



14 

treason and crime against tlie United States^ and they re- 
mained entitled to trials under the Constitution and in ac- 
cordance with the prescribed laws; that the States never 
ceased to be States; and that all their governments were 
provisional, at least, with codes defining crimes, and civil 
courts to punish these crimes; and therefore there never 
could be a necessity for this undefined attempt to create a 
military jurisdiction in defiance of the Constitution, thus 
" affecting to render the military independent of, and supe- 
rior to, the civil power." 

"We may admit the constitutionality of the reconstruction 
laws so far as they confer power to re-create States and confer 
sufirage and authority upon those who would restore the gov- 
ernment and adopt the amendments, and at the same time 
deny the constitutionality of this criminal jurisdiction, and 
its exercise over citizens in a manner expressly forbidden. 

The great object of these laws, and of certain preceding 
measures, was to secure the ratification of the Xlllth, XlVth, 
and XYth amendments to the Constitution. That has been 
(\oiiQ — happily and wisely done. Millions yet unborn will 
bless the work. But in perfecting that work, the first sec- 
tion of the XlVth amendment arrays itself against this ex- 
ercise of military power: 

"All persons born or naturalized in the TJuited States, and 
subject to the jurisdiction thereof, are citizens of the United 
^States and of the State wherein they reside. Xo State shall 
make or enforce any law which shall abridge the jyricilegcs or 
iniyimnities of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property withoat dm 
yrocess of laii\ nor deny to any person within its jurisdiction 
the equal i^rotection of the laws," 

This leaves no doubt of Mr. Alford's citizenship; and it 
denies the power to take away his liberty" '■'■ icithout due i)ro- 
' cess of laiL\" This power had already been denied to the 
national Government. And it had already been often de- 
fined to mean all the guaranties set forth in the Vth and 
Vlth amendments. (Jones v. Montes, 15 Tex., 353; Jones 
V. Reynolds, 2 Tex., 251.) 

^^ Nee super cum ibiuius, nee super cum mittimus, nisi per 



15 

* legale judicium ^ixirhun suorum, velpcr legem teircc." [" I^eitlier 

* will wc pass upon liim, or condemn him, but by the lawful 
' judgment of his peers or the law of the land."] ^Miat law ? 
Undduhtodly a pro-existing rule of conduct, not an ex post 
facto law, rescript, or decree made for the occasion — the pur- 
pose of working the wrong. (See the authorities collected 
in Paschal's Annotated Constitution, Xote 257, p. 260.) 

Mr. Trcsident, I feel that that little book, which will out- 
live me, would deserve to be consigned to infamy, with its 
author, could I allow this day to pass without entering my 
solemn protest against the longer incarceration of citizens, 
under a proceeding which violates every principle of that 
Constitution and every authority cited in the commentaries, 

I can no more be silent while the Constitution is being 
trampled upon by the federal authorities in time of peace, 
than I could while it was being subverted by the Confede- 
rate authorities in time of war. 

There is a petition before you, signed by many leading 
Republicans of Texas, beseeching the exercise of your ex- 
ecutive clemency. There is a report of the judge advocate 
who tried the cause, indorsed, I am told, by the Judge Advo- 
cate General, in which it is said that the guilt of Mr, Alford 
is not satisfactorily proved. I am told that there is also a 
petition of Texas officials against the pardon. I have read 
none of the papers but the first, and that I read to your 
excellency when I called with the son of the prisoner. I 
know that your excellency's kind heart was then strongly 
moved toward mercy. God forgive the men who thrust 
themselves between the sulforing man, kneeling at the foot- 
stool of power, surrounded, as he was, by ai> aged and weep- 
ing wife and heart-broken children, and imploring the head 
of the nation for forgiveness of a supposed otfense, with 
which he is charged, but for which he had never been law- 
fully tried or duly convicted. That man holds up to you 
the Constitution of his country, and demands of his accu- 
sers to try him before a tribunal known to the law. These 
men, who can know nothing of the proof, who can make no 
argument in favor of the power of the tribunal which tried 



16 

him, for purposes known only to themselves, seek to silence 
the voice of mercy, and to prevent that examination which 
must estahlish that, upon the supreme law and the evidence, 
justice would require the annulment of the sentence. But 
let none complain. Three thousand protestants cried aloud 
at once, at the throne of Pontius Pilate, and secured the 
crucifixion of the God-man, of wdiom the judge was obliged 
to say, "I find in him no fault at all!" 

I put this case upon a ground as sacred and holy as any 
law^s, save those given by the great Fountain of mercy and 
justice. I plead for a Constitution violated, a Declaration of 
Independence outraged, a country bleeding and distracted, 
because our rulers have not returned to the plain landmarks 
of protection and liberty guarantied. And I demand that 
no avengers of blood shall be heard or heeded against this 
prayer. 

Only the other day those protestants against mercy, those 
Texas advocates of military power, passed a law authorizing 
the declaration of martial law, military rule, military commis- 
sions, suspension of the writ of habeics corpus and civil law, 
and the arbitrary levy of taxes worse than the ship-money of 
James by a despotic governor. Those things and a nation of 
liberty cannot survive together. The}' portend despotism, 
anarchy, and ruin. Your position enables you to establish a 
precedent in favor of the Constitution. The time has come; 
the States have been restored; the pretended law under which 
this party was imprisoned has accomplished its work, and 
has expired and become obsolete. The power to convoke 
such another tribunal has ceased, and, I trust, forever. There- 
fore there can be no excuse for asking us to make a judicial 
case, w'ere that possible or desirable, and it is not. IsTay, such 
a precedent has been avoided by every possible device. As 
in Yerger's case, which did your excellency honor, the par- 
ties could be turned over to the civil authorities of Texas. 

In the name of the Constitution, of justice, of mercy, and 
of liberty prostrated, I implore you to order the discharge 
of Alford, and of all others imprisoned under this law. 
I remain, very respectfully, 

GEO. W. PASCHAL. 



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